Legal thoughts, since 2005.

I'm a West author. Accordingly, I am provided with free access to most of Westlaw's databases so that I can conduct research for the annual supplements to my book, Criminal Law in New York.

I recently inquired of my editor whether I would receive access to Westlaw Next as I prepared my annual update this summer.

Surprisingly, my editor informed me that he was unsure whether I would have access and that attorney editors hadn't yet received access. Needless to say, this perplexes me. Why would West not automatically allow these groups of people access?

Allowing authors access would be a win-win for West: I'd be able to
produce a better work product as a result of having access to a better
research tool and I'd likewise spread the good word about Westlaw Next
as a result of my (presumably) favorable experiences with it. (Not to
mention that this particular author has an extremely strong online
presence and any favorable commentary would arguably be akin to free
publicity).

Today, Brian Tannebaum celebrated the 15th anniversary of his admission to the Florida bar and in honor of the occasion, drafted this insightful post which offered advice gleaned from his 15 years in practice.

In February, the 14th anniversary of my admission to the New York bar passed. I loved the idea behind Brian's post, and in keeping with that theme, I offer the following advice to young lawyers (from a Daily Record article that I wrote in December of last year.)

I challenge other experienced lawyers to do the same.

******

An open letter to future lawyers

I wanted to begin this week’s column by sharing a poem I wrote while
in law school, an open letter to future lawyers:

I entered
law school fearful and proud —yet knowing who I was But the
metamorphosis rudely and abruptly began. As the classes … days …
weeks passed, case after case I became “Ms. Black” —someone I didn’t
know. Loneliness and insecurity became mine And I reveled in my
solitude. All confidence I had in myself was lost In some dusty
old book in the corner of the library. Perhaps if I sheperdize that
book, I might discover what has become of my self. If it’s been
overruled, I’d like to know the new holding. It seems I’ve
gained knowledge But lost my self. I wonder how that would
balance out On the sacred scales of justice?

To the
future lawyers of the world, know that those of us admitted to the bar
once were where you are. Most of us still remember. We understand.

But
we also know more than you. We’ve been doing this a lot longer than you
have. Most of us know what we’re talking about.

Rule 2 is very
important: You can’t have everything. You think you can, but you can’t.
You’re naïve to think this, but it’s not your fault. You were spoon fed
this nonsense as you were growing up, and the people who told you that
you could have it all were cruel and negligent for doing so.

Life
is all about compromise. Master that skill and you’ve got it made.

Rule
3 is very similar: Palsgraf is a life lesson. Life is
unpredictable. Stuff happens. You can’t always control it or predict
it.

Get used to it. That’s life. The skill is knowing how to deal
with the unexpected-don’t let it throw you off track.

Rule
4: Perspective is everything. When life happens, roll with it
as best you can. Alter your perspective and you alter your reality.
Master this skill. It will take you far.

Rule 5
is simple: Success is in the eye of the beholder. Don’t let anyone else
define success for you —not your parents, professors, career counselors
or classmates. Only you know what success is for you. Delegate that
determination at the risk of your happiness, stability and sanity.

Rule
6 also is an important one, so pay attention: Defy everyone’s
expectations —don’t be an asshole. People think lawyers are jerks for a
reason. Don’t live up to their expectations. Treat your clients, your
colleagues, your staff and your opposition with respect.

Don’t be
sleazy and underhanded. Don’t be arrogant. Avoid being pompous. Trust
me, if you ignore this advice, it will come back to haunt you in the
long run.

Rule 7:The law is not your mistress.
Don’t buy into that idiocy. Your law degree simply i s a means to an end.
It’s a way to pay the bills and feed your family. Hopefully, it’s a
fulfilling process for you. If not, then you’re not using your law
degree in the right way.

Remember, rule 3 — stuff happens. If you
don’t like the career path you’re on and it’s interfering with your
life, reassess your path and alter your course.

Finally, rule
8: Do not let the law engulf you. You should not emerge from
law school as a bruised and broken shell of the person you once were.
Don’t let them do that to you. Retain your true essence. Never forget
why you chose this path.

I think my favorite depressing fact was that women lawyers who are married see decreases in income, while married men see increases. The statistics regarding the disparities in the career paths and incomes of women attorneys versus male attorneys was striking, but not unfamiliar to me. At this stage of the game, men and women simply fare differently in our profession for any number of reasons.

The Chicago Bar Association also held an event targeted to law students this month, “What Not To Wear Fashion Show,” which was covered by the Above the Law blog. The show’s panel consisted of judges, law professors, lawyers and fashion industry experts who offered advice on appropriate attire for lawyers.

Apparently, the event should have been called “What Women Lawyers Shouldn’t Wear,” since the vast majority of the advice centered on appropriate attire for women attorneys, with male attire being a mere afterthought.

One issue that appeared to be of great concern to the panelists was that women should avoid revealing their “form,” lest they “tempt” the “married men at law firms” or “distract” the judges.

Yes, apparently the panelists, one of whom was a judge of the feminine persuasion, actually suggested that it is the job of women lawyers everywhere to hide their “form” in order to ensure male attorneys stay focused on the task of practicing law.

One wonders how male gynecologists manage to perform their job in the face of seemingly insurmountable distractions, but I digress.

The panel reminded me of one with a similar focus, held in Memphis in 2008, at which a group of lawyers and judges met to discuss the issue of a dress code proposed by a number of Memphis Bar Associations.

The proposed rule at issue was: “All attorneys should wear appropriate attire. Men shall wear coats, ties, slacks and appro- priate footwear, which does not include athletic shoes or shoes without socks. Women shall wear professional and conservative attire, such as dresses with jackets, suits or pantsuits (with appropriate tops), and appropriate footwear, which does not include cocktail shoes or sandals or athletic shoes.”

I think my favorite part of the rule is that the attire for women is specifically described as “conservative.” For some reason, men need not dress “conservatively.” Presumably 1970s-style leisure suits would be perfectly appropriate for men to wear court.

One also wonders how cold-weather-climate attor- neys such as myself are expected to handle the issue of boots in the winter. Boots most certainly are not “appropriate footwear” under the proposed rule. They are an absolute necessity, however, when you have to walk a few blocks to court in the middle of an Upstate winter. Men have the luxury of slipping “rubbers” over their (flat) shoes. Many wear the unattractive foot coverings into court as well, and I’ve never heard any complaints about that particular practice.

The Memphis panel, like the Chicago one, seemed to spend an inordinate amount of time complaining about the fashion choices of women lawyers, paying mere lip service to the choices of men. Another day, another sexist panel.

One day, perhaps, “fashion” panels that seemingly exist solely to criticize women attorneys will be looked upon as tacky tribunals of generations past.

One day, there no longer will be a need to hold panels focus- ing on gender disparities in promotions and pay.

One day, the gender of an attorney will be a mere afterthought.

When I entered law school I assumed, naively, that day had long since arrived. Now I simply hope that day will come at some point in my lifetime.

This week's Daily Record column is entitled
"New Jersey to Lawyers: Practice Elsewhere."

A pdf of the article can be found hereand
my past Daily Record articles can be accessed here.

*****

New Jersey to Lawyers: Practice Elsewhere

At the end of March, the New Jersey Advisory Committee on Professional Ethics and the Committee on Attorney Advertising issued a joint ethics opinion addressing, among other issues, whether a “virtual law office” met the state’s “bona fide office” requirement.

In Opinion ACPE 718/CAA 41, after a lot of twisted and convoluted reasoning, the committees concluded, in so many words, that the new fangled concept of a “virtual office” is a bunch of unacceptable gobbledy gook.

Although the vast majority of states wisely abandoned the “bona fide
office” rule after accepting the fact that we now practice law in the
21st century, New Jersey continues to dig its heels firmly in the 19th
century, presumably requiring its attorneys to ride horses and buggies
into work, while also requiring them to comply with Rule 1:21-1(a):
“For the purpose of this section, a bona fide office is a place where
clients are met, files are kept, the telephone is answered, mail is
received and the attorney or a responsible person acting on the
attorney’s behalf can be reached in person and by telephone during
normal business hours to answer questions posed by the courts, clients
or adversaries and to ensure that competent advice from the attorney can
be obtained within a reasonable period of time.”

The “virtual office” at issue in the New Jersey opinion was one in which
lawyers shared a physical office in a “time-share” agreement. The
office space was leased on an hourly or daily basis and each attorney
was available by appointment only. The building also had a receptionist who directed clients to the
appropriate location for a meeting and under some lease agreements,
the receptionist also forwarded mail and phone calls to respective
attorneys.

In the Joint Opinion, the committees concluded that arrangement did
not meet the bona fide office rule since the attorney generally is only
present when she or he has reserved a space for a meeting, and the
receptionist cannot act on the attorney’s behalf since he or she is not
privy to the cases being handled by the attorney.

However, as detailed in the opinion, a home office meets the bona fide
office requirement in New Jersey since the attorney could, in theory, meet clients at the home office. Never mind that the attorney could, in theory, meet clients at the virtual office described above. Somehow, that’s different, although the opinion doesn’t really explain why.

Likewise, it is acknowledged in the opinion that many solo practitioners do not have support staff and frequently are out of the office due to court obligations, etc. In that case, if the absence is “occasional,” the rule is not violated as long as the attorney can be reached via e-mail or phone.

If the absence is “regular”, a responsible person must be present in the office. In other words, a solo attorney in New Jersey walks a precariously fine line between “regular absences,” “occasional absences” and an ethics violation — not to mention that this type of virtual office set-up isn’t one many would consider to be a true “virtual office.”

Some would define a virtual office as one without walls, with no physical address. Where lawyers store client files in the cloud and communicate with clients via e-mail, Web conferencing and other methods using secure online platforms. Where client meetings occur at the client’s place of business or another locale that is equally suitable and convenient for the client. Where modern technologies are leveraged to allow lawyers to practice law efficiently, economically and ethically.

However, let’s keep that definition of a “virtual office” to ourselves for now. I have a feeling it wouldn’t sit well with the New Jersey ethics committees.

Besides, I’m sure they’re quite busy searching for a quill and parchment upon which to write their next ethics opinion and I’d hate to intrude upon their efforts with a healthy dose of reality.

A pdf of the article can be found hereand
my past Daily Record articles can be accessed here.

*****

NC Bar to Issue Cloud Computing Opinion

The North Carolina State Bar has been asked by a member of its bar to determine whether her intent to use Clio, a Web-based practice management system, in her law practice violates that state’s ethics rules.

The exact question being posed is: “Is it within the RPC for an attorney/law firm to use online (“cloud computing”) practice management programs (e.g., the Clio program) as part of the practice of law? These are instances where the software program is accessed online with a password and is not software installed on a computer within the firm’s office.”

The concept of third-party electronic storage of client data is not a new one to the North Carolina Bar. Similar issues were addressed on at least two prior occasions.First, in 1996 RPC 234 addressed the electronic storage of client files. The bar concluded inactive client files may be stored in electronic format, provided original documents with legal significance — such as wills, contracts, stock certificates, etc. — are culled from the paper file and stored in a safe place or returned to the client. The documents also must be stored in an electronic format can be reproduced in a paper format. Rule 2.8(a)(1) and RPC 209.

In 2008, a formal ethics opinion addressed the issue of third- party storage of digital client data. In that ruling, the bar said a lawyer must take steps to minimize the risk confidential client information will be disclosed to other clients or to third parties. See RPC 133 and RPC 215. “If the law firm will be contracting with a third party to maintain the Web-based management system, the law firm must ensure that the third party also employs measures which effec- tively minimize the risk that confidential information might be lost or disclosed,” RPC 133. (2008 Formal Ethics Opinion 5) states.

Both opinions concluded attorneys must exercise reasonable care when choosing a third-party storage provider. In order to meet the obligation, attorneys must be knowledgeable about how the third-party provider will handle data entrusted to it, and also ensure all agreements with a provider include terms requiring the preservation of the confidentiality and security of the data.

In other words, common sense prevails, and dictates that the same confidentiality standards applied to physical client files should be applied to computer-generated and stored data. That is because parties always have had access to confidential client information, including building cleaning crews, summer interns, document processing companies, external copy centers and legal document delivery services.

Lawyers who use such traditional services or third-party digital storage services have the same ethical obligations, and must ensure that employees who manage and have access to client information preserve its confidentiality and security. Software as a Service (SaaS) platforms, like Clio,which store both law practice management software and client data are no different from other third-party service providers, including those that simply store digital versions of confidential client data on third- party servers.

Regardless of the service provided by the third party, a lawyer’s ethical obligation is the same: Ensure the third-party provider employs security measures that effectively minimize the risk confidential information will be lost or disclosed.

For the future of the profession as a whole, the legal field must adapt to and embrace technology. Absolute security, while ideal in a Utopian world, is a real-world impossibility. To require absolute security, or issue a decision that effectively micromanages law offices’ technology choices, would prohibit lawyers from using emerging technologies in their law practices altogether — an unrealistic alternative in the 21st century.

A more reasonable course of action — and one that will allow the business of law to adapt to fast-paced, ever-changing technologies — would be to create a broadly framed, elastic standard that allows individual attorneys to make careful choices about the technologies that best fit their individual practices. I sincerely hope the North Carolina Bar follows that path when issuing its decision in this matter.

Now that I have my new iPad, affectionately named "Alice," I've decided to start a blog about iPads. It's called "Legal iPad". Check it out, why don't you?

Also, you may know that I recently began guest blogging at the Firmex Online Document and Collaboration
blog.
My posts appear every Tuesday. If you're interested in cloud computing
and other technology issues for lawyers you may enjoy these posts. Here
are some of my most recent posts:

This week's Daily Record column is entitled
"Different Strokes for Different Folks"

A pdf of the article can be found hereand
my past Daily Record articles can be accessed here.

*****

Different Strokes for Different Folks

During the last week of March, I was privileged to speak at one of my favorite legal conferences, ABA TechShow.

My two presentations focused on educating lawyers about how to create an effective online presence: “Creating Your Online Presence” and “Managing Your Online Presence: The Care and Feeding of the Online You.”

While at TechShow, my new book, “Social Media for Lawyers: the Next Frontier” debuted and my co- author, Carolyn Elefant, and I participated in a “meet the authors” session and hosted two “Taste of TechShow” dinners with conference attendees.

An interesting theme became apparent throughout all of the events, both in the form of the audiences’ comments and questions during my presentations, and during conversations over dinner or with attendees who stopped me in the hall to discuss social media. The overarching theme — one that didn’t surprise me — was that different social media plat- forms have had varying levels of effectiveness for different lawyers.

Some find Facebook pages to be extremely effective, while others found
them useless. Some claim to have obtained nearly all of their clients
via their blogs, while others stopped blogging because they deemed the
task a waste of time.
Some say Twitter is a very useful platform, while others long ago
abandoned it as a pointless time-suck.

During each of my interactions, I attempted to flesh out the reasons for
the varying levels of success with the different forms of social media.
It became obvious that success in using social media depends on any
number of factors, including the lawyers’ goals, areas of practice and
locations.

As I mentioned, the “theme” didn’t surprise me. In fact, it is one of
the central premises of our book. As we explain in the introduction:
“[L]awyers should use a practical, goal-cen- tric approach to social
media, which ... enable[s] lawyers to (1) identify social media
platforms and tools that fit their practices and (2) implement them
easily, efficiently, and ethically.”

In other words, before diving into social media, lawyers first should
determine their goals, then make intelligent, informed choices regarding the online platforms that will help them to achieve those goals.

Many goals can be achieved through the use of social media and we devote a chapter to each goal in our book — networking and building relationships; locating information to support areas of practice; gain competitive intelligence and customer feedback; showcase your expertise; brand yourself and your law practice and increase search engine optimization and improve quality of leads.

Once you’ve identified your goals, the next step is to determine what social media platforms are the best fit for your goals, practice areas, location and, most importantly, your personality and comfort level with the platform. If you are uncomfortable with a platform, then your social media efforts likely are doomed to fail from the very start.

Those who find writing a chore most likely will find that blogging is not for them. A video blog, podcast or a completely different type of social media plat- form might be a better choice.

If the informality of Twitter puts you off, then perhaps writing a blog or participating in LinkedIn groups might be a better fit. In some cases, a very basic online presence, including a Web site and online attorney directories, may be the only online platforms you wish to use. There’s nothing wrong with that approach. The bottom line is that there is no right way for a lawyer or law firm to use social media effectively. It’s not a “one size fits all” approach, nor is it possible to throw together quickly a compelling social media presence.

Instead, creating and maintaining an effective online presence is a matter of learning about the platforms available and implementing a tailored, well-thought out social media plan.

Tomorrow, Tuesday April 6th at 1 pm EST Avvo is hosting a preview webinar of "Social Media for Lawyers: the Next Frontier," my new book co-authored with Carolyn Elefant that will be published later this month by the American Bar Association.

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